Conflict avoidance, management and dispute resolution procedures

Question 1

What is a conflict?

Answer 1

When a dispute / disagreement of two parties occurs

Question 2

How do disputes occur?

Answer 2

Failing to provided the appropriate level of service

Not completing services in line with the fee proposal

Contractual disputes
Design disputes
Disagreements over value
Time disputes

Question 3

What is the importance of having clear and robust client briefings?

Answer 3

This allows both the client and service provided to understand what is expected from each other

When both parties understand the project requirements, they are less likely to experience misunderstandings that lead to disputes

Question 4

What is the RICS guidance on conflicts?

Answer 4

Conflicts of Interest – RICS professional standard 2017
- 3 types of conflict: Own interest conflict, Party conflict, confidential information conflict

Conflict avoidance and dispute resolution in construction – RICS guidance note

Question 5

Why is it important to avoid conflict?

Answer 5

Maintain client relationships

Preventing Escalation

Reduces stress

Enhances communication (when conflict is avoided)

Question 6

What is a conflict of interest?

Answer 6

When a member or firms duty to act impartially is affected

3 types:

Own interest conflict
Party conflict
Confidential Information conflict

Question 7

What is a conflict check?

Answer 7

A conflict check is used to determine if a member or firms ability to act impartially is affected.

Can involve past or present clients, property or other relevant entities involved in the project.

Question 8

How would you carry out a conflict check?

Answer 8

1. Check the client entity and address
2. Check the property address
3. Use CBRE Internal Client Management System - sales force
4. Review any conflict or potential conflict and assess the next step

Question 9

If there was a conflict of interest, how would you deal with it?

Answer 9

1. Inform the client
2. Disclose the nature of the conflict
3. Notify them that impartiality may be impacted
4. Get sign off from the client and all relevant parties and set up an information barrier

Question 10

What is the best way to avoid conflict?

Answer 10

1. Good Management
2. Clear Contract Documentation
3. Good Project and Client Management
4. Regular Reporting
5. Record Keeping
6. Partnering and Alliancing

Question 11

Why is it important to avoid conflicts of interest?

Answer 11

To ensure you can advise and represent each client objectively and independently.

This helps maintain client and public confidence and maintain creditation

Question 12

What do you understand by the term ADR?

Answer 12

ADR means Alternative Dispute Resolution and encourages parties to settle disputes outside of court.

It is cheaper, quicker and keeps courts free.

Question 13

What are different ADR processes?

Answer 13

Adjudication
Mediation
Arbitration and expert determination

Question 14

What is Negotiation?

Answer 14

Problem solving between parties

Question 15

What is Mediation?

Answer 15

Mediation introduces a 3rd party to help aid discussion and reach a mutual agreeable solution between the two parties. Not legally binding.

Question 16

What is Adjudication?

Answer 16

Outcome is decided by a 3rd party who hears both sides of evidence from the two parties.

Question 17

What is Independent Expert Determination?

Answer 17

Both the parties agree a 3rd technical expert who will make a decision for them. Decisions are final and it is not possible to appeal.

Question 18

What is arbitration?

Answer 18

1. Arbitration Act 1996
2. A lawsuit with no court involvement
3. Arbitration makes a legally binding decision but it is private
4. Limited appeals rights

Question 19

What’s the difference between adjudication and arbitration?

Answer 19

1. Arbitration is legally binding
2. Adjudication is quicker and cheaper
3. Arbitration can use expert witnesses
4. Adjudication: both parties are liable for fees
5. Arbitration losing party pays the fees

Question 20

What is litigation?

Answer 20

1. Taking the dispute to civil court
2. Expensive
3. Can summon witnesses
4. Can involve 3rd parties
5. Legally binding
6. In public domain

Question 21

What is an expert witness?

Answer 21

An expert witness is a individual who has knowledge in a particular field which could help a court understand the issue before a decision is reached.

Decsion is made to the grou p

Question 22

Describe the time frame for adjudication?

Answer 22

1. Either party can issue an intention to refer dispute to an adjudicator
2. The party referring a dispute must provide its case to the other party within 7 days
3. Within 7 days the referring party must appoint an adjudicator
4. Adjudicator must make a decision in 28 days.
5. It can be extended to 42 days if both parties agree.

Question 23

What legislation does RICS provided on complaints handling?

Answer 23

Complaints Handling – RICS Professional Standard 2016

Question 24

Are you aware of any published guidance from the RICS with regards to handling complaints?

Answer 24

Complaints Handling - 1st Edition July 2016,

Dispute Resolution Service (DRS), Scotland).

Question 25

Advantages of ADR?

Answer 25

Speed - taking less time than lengthy court proceedings Greater opportunity for negotiation Cost - less money spent on professional fees for litigation Quality of decision making, as the outcome or award can be made by a surveyor rather than a judge Confidentiality - As decisions aren't made public like court procedures

Question 26

What is RICS CAP?

Answer 26

The RICS Conflict Avoidance Process (CAP) is a contractual mechanism which helps parties avoid prolonged and damaging disputes

Question 27

What is without prejudice?

Answer 27

Without prejudice" means that a statement or document is made without affecting the legal rights or claims of the parties involved.